Freedom of Speech and YouTube…or Not

There was a great deal of controversy last month when some individuals who had posted videos of what appeared to be illegal UAS operations began receiving letters from the FAA.  This, in turn, caused a large number of people to take to social media to complain that the FAA was violating people’s First Amendment rights by sending those letters.

In light of the controversy, the FAA has decided to set a new National Policy  to be followed by all Flight Standards District Office Aviation Safety Inspectors.  This Notice, entitled Aviation-Related Videos or Other Electronic Media on the Internet, is intended to give guidance on what actions should be taken once the FAA is notified that there are videos or electronic media that depict any aircraft operation that is “contrary to Title 14 of the Code of Federal Regulations (14 CFR) or statute.”

The Notice outlines a multi-step process, and indicates that the FAA expects its investigators to engage in “critical thinking when addressing electronic media” showing illegal activity.  In general, the FAA believes that the most appropriate first response is the initiation of an “educational outreach.”  This includes sending a copy of the “UAS Information Letter Template for Inspectors,” which is attached as Appendix A to the Notice.  If the outreach is ineffective or the person is “noncompliant or uncooperative,” then the Inspectors are encouraged to conduct a full investigation of any operation that resulted in a “medium or high potential or actual endangerment to the NAS . . . .”

The Notice also reminds Safety Inspectors that the video of the flight may not be determinative of whether it was a commercial or hobby flight.  As Planely Spoken pointed out previously, the determination of whether a flight is a permissible recreational activity depends on the intent of the operator at the time the UAS was operated.  Subsequent actions might be evidence that a flight was commercial, but they cannot convert a proper hobby flight into an illegal commercial flight after the fact.

Finally, the FAA also makes clear to Safety Inspectors that they “have no authority to direct or suggest that electronic media posted on the internet must be removed.”  Including this guidance is a good idea, as it will hopefully remove the confusion from last month over whether the FAA is punishing people for their “free speech” or for their actions.  If you posted a video of yourself robbing a bank, no one would be surprised if they heard that the FBI was investigating to prove a crime was committed.  People certainly would not claim that the FBI was violating your First Amendment rights.  What the FAA is doing is no different, and questions about “take-down” orders just confuse matters.

So, for those of you who have been conveniently documenting your dangerous or illegal UAS operations and putting them out for all to see, don’t be surprised if you get a letter from the FAA.  You earned it.

(Originally posted April 14, 2015)

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